March 14, 2012

US v. John Emerson Tuma - Day Three - Morning Session

The morning session kicked off at 9:00 a.m. with Jim Boren cross examining Chris Warren. The defense scored some apparent early points as to the sampling protocal used by the City employees. Specifically, the thermometer used to measure the temperature was only wiped down after each use. There was also some discussion regarding the temperature of the samples taken in the morning by Ana-Lab and then in the afternoon by the City (after the contents of the tank had been sitting all day). The cross then focused on the layering of the tank and that one would expect different temperatures from the different layers of the tank with the temperature higher in the upper stages of a tank. Cross also established that a discharge of the tank would start from the bottom of the tank. Chris Warren testified that he did not recall if the samples taken in December 2006 by the City were split with ARKLA and he testified that he did not notify ARKLA of any exceedences.

Cross examination then focused again on the sample analysis. Chris Warren was asked what the BTEX of the raw material received by ARKLA would be and he testified that it would be trace amounts based upon the permit application of ARKLA. Chris Warren also testified that there was a treatments system in place to remove BTEX (by heating the water) - (this is somewhat contradictory of Wayne Mallet's testimony of no treatment process).

Cross examination of Mr. Warren concluded with establishing the time frame of the installation of the flow meter outside of the facility and that while the City issued a new permit to ARKLA in July 2007, Mr. Warren had no involvement in that process.

On redirect, the government did a good job of establishing that there was no cross contamination of the samples by the thermometer as the sample is collected and then the temperature is taken from the residual material not from the segment of the sample material that is going to be analyzed. The government then addressed the temperature variations. Mr. Warren testified yesterday that the initial sample temperatures were higher than subsequent sample temperatures. He testified today that this indicated that with a permitted discharge that the temperature should have been lower at first and higher later.

The redirect was, in my opinion, very effective in addressing the points raised by defense counsel on cross examination.

The next witness up was Mercy Rhone, a former City of Shreveport employee. Ms. Rhone testified as to a specific sample event that was described by her as a discharge during a time the facility should had not have been discharging. She testified she was at the facility to modify the manway where a flow meter and compositor were to be installed. She heard a flow in the pipe and investigated only to discover a flow. She testified that it was hot (temperature wise), a very dark color and smelled of BTEX. Wayne Mallet came out to talk to her and told her that the facility was not discharging at that time. She testified that as Wayne Mallet was talking to her the flow ceased. She also testified that she collected a sample of the discharge and that she felt that the flow meter inside the facility had been tampered with.

On cross examination, the defense confronted her with an e-mail she had written five days later where she stated that she dipped her finger in the sample to gauge the temperature. She denied having done that; however, her e-mail stated differently. The defense also effectively called into question the sampling techniques used as the sample was challenged at a later show-cause hearing. This was an apparent attempt, in my opinion, to show a motive for testifying against John Tuma. The defense also effectively cross examined Ms. Rhone on her statements of tampering with the flow meters in the facility. When pressed on what tampering was done, she stated that it was only that the numbers did not match up and that the flow meter would show no flow even when a discharge occurred. The manner in which she testified to those events, however, seemed forced. The final point on cross examination was that Jim Boren had Ms. Rhone state that Wayne Mallet told her a "bald faced lie." This theme seems to be one of the cornerstones of the defense.

On redirect, the government reconfirmed that on that particular day, ARKLA was discharging at a time that it was not permitted to discharge.

The final witness of the morning was E. A. Rowe, a contract welder that ARKLA used frequently. Mr. Rowe had created a pipe he called a "tie-in" on the orders of John Tuma. It was essentially a three foot section of a three inch pipe and a six inch pipe that were welded together with a slit cut out of each, which would allow flow from one pipe to the other. The government had the actual section of pipe in the courtroom. Mr. Rowe testified in his 45 years of welding he had never done something like this pipe before.

On cross examination, Mr. Boren had Mr. Rowe view the pipe and had him testify that the six inch pipe had sediment build up but that the three inch pipe did not. Mr. Boren had Mr. Rowe testify that what ever went into one pipe would go into the other pipe. Mr. Boren then had a discussion with Mr. Rowe on where the three inch pipe went in the facility. Mr. Rowe testified that the three in pipe went through the North Building and connected with a header, which allowed connections to other pipes. Mr. Boren had Mr. Rowe testify that the pipe was created in full view of any one during daylight hours. Mr. Rowe testified that John Tuma told him what he needed to do with the pipe; but that Mr. Rowe had no knowledge of the purpose of the pipe as configured. Mr. Boren also asked Mr. Rowe about being called back out to the facility because the three inch light leaked. Mr. Rowe testified that the leak was not at his weld but at a place over the lab where the line had a T connection and a valve. He testified that he put a "blind" on the open part of the T connection.

On redirect, Mr. Rowe confirmed that the six inch pipe ran to the Red River and that the Red River side of the three inch pipe was "blinded-off." He also confirmed that from the header other lines could have been connected to send material to the Red River. He also confirmed that there was nothing in the six inch line to prevent anything from the three inch line from going to the Red River.